By Andrew Ognibene
The American Bar Association’s Section of Environment, Energy, and Resources (ABA-SEER) publishes an annual ADR Year in Review report, which includes notable case law relevant to the use of alternative dispute resolution (ADR) in environmental cases, case studies of multi-party environmental disputes, and other emerging developments in environmental dispute resolution. By way of presenting the 2015 ADR Year in Review, the group hosted a conference call last week featuring Lara Fowler and Nathan Bracken, and moderated by Michele Straube, to highlight key findings and themes. Here are a few takeaways from that discussion:
- Courts continue to refine the limits of confidentiality and privilege in mediation.
The way that courts draw boundary lines around the mediation process and mediation communications can have noteworthy implications. There is no formal, shared definition, and state statutes on the subject vary. Some states consider mediation to be a one-time event, while others consider the on-going negotiation process a protected part of “mediation.” So when does the mediation “end,” and when does it “begin”? Do the confidentiality protections of mediation communications only apply when an actual mediator is present?
Last year, Oregon answered the last question in the affirmative. In Alfieri v. Solomon, the Oregon Supreme Court defined mediation extraordinarily narrowly, holding that it consists of only the parts of the “process” where a mediator is a participant. The court held that separate interactions between parties and their counsel occurring outside of the mediator’s presence, even if related to the mediation, are not included in the mediation confidentiality protections. This decision was based on Oregon state law, so practitioners will want to double-check their own state’s definitions and monitor whether this rule applies.
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- Settlements relying on Congressional or other third party approval may be infeasible.
The presenters highlighted the current difficulty in relying on federal funding or agreeing to settlements subject to Congressional approval. For a decade, stakeholders from the Klamath River Basin worked tirelessly toward a series of agreements that limited farmers’ water consumption, removed dams, and introduced new power sources. The series of agreements, however, required Congressional approval by the end of 2015. Once in Congress, the agreement was stonewalled by conservative representatives worried about establishing a framework for environmentalists to remove dams in their home districts. The settlement ultimately lapsed. Nathan Bracken used this as a touching point to warn against relying on “escape clauses” in settlement agreements where implementation of the negotiated settlement is dependent on ratification or action by others (e.g., Congress).
- Modern multi-stakeholder collaborations intertwine multiple environmental issues, which can elongate the period of negotiation and make settlement more costly.
Last year, we saw some astounding settlement dollar figures and the resolution of a few complex, multi-year negotiations. The final BP Oil Spill settlement ended up above $20 billion. The Confederated Salish and Kootenai Tribes in Montana had their water rights valued at $2.3 billion after a decade of negotiation. Earlier this year, the Bureau of Reclamation announced the Truckee River Operating Agreement after a full 27 years of negotiations, studies, and litigation.
Environmental issues are becoming more complex and broach multiple segments of the law. Mentioned above, the Klamath Agreements involved issues of dam removal, endangered species, public land disputes, and water rights disputes (including Indian water rights claims). The Confederated Salish and Kootenai Tribes case involved Indian water rights, infrastructure improvements, and economic development issues.
While ADR is often billed as a quick and cost-efficient process, these examples illustrate what can happen when institutional stakeholders and contentious natural resources are in play. It takes ever more resources—money and time—to reach a settlement. Still, ADR and collaborative problem-solving will continue to be an attractive option in these scenarios. Finding agreement outside the court system keeps the result in the hands of the stakeholders, often co-creating effective solutions a court does not have jurisdiction to impose, and avoids adversarial litigation that can fracture long-term relationships needed to implement the negotiated agreements.
- Collaboration over shared data and a common understanding of the facts can resolve uncertainty, and lay the groundwork for agreement on workable solutions.
Collaborative parties are always better off when they work from shared facts; creating a common data set can serve that function in environmental disputes. The Yuba River Partnership in California recently announced an agreement to reintroduce salmon into the northern end of the river. This agreement was possible because the parties had committed to engage for two years to reach a common understanding of the underlying science before negotiations began. Another collaborative group in the Apalachiocola, Chattahoochee and Flint River Basin spent millions on compiling shared data, establishing a common data clearinghouse, and providing its members with consistent information. The resulting Sustainable Water Management Plan was a huge victory for the region.
- Mediators should emphasize transparency about their role in the process to address potential conflicts of interest issues.
A review of the year’s case law indicates the importance of understanding the nuances of your state’s mediation and professional responsibility rules. In one case, an attorney who volunteered as a third-party neutral for a community clinic ended up disqualifying his entire law firm from participating in future proceedings involving the same clients. Mediation communications may be considered admissible evidence in attorney malpractice cases. A good discussion developed at the end of the conference call addressing ways that attorneys can be fully transparent with their clients in their retainer letters.
- The benefits and challenges of negotiation and collaboration can and should be evaluated at the beginning and end of a negotiation process.
The Q&A session of the call identified two ways to learn more about the benefits and challenges of collaborative problem-solving processes for complex environmental and natural resource issues. Conflict or situation assessments, often conducted by a third-party neutral as the first step in a mediation or collaborative process, can help the parties explore the questions of timing, costs, opportunities for and barriers to success.
There is a need to develop a database of case studies, to help academics, third-party neutrals, and interested stakeholders identify best practices and lessons learned from various ADR processes. The ABA-SEER ADR Committee welcomes suggestions of court cases and collaborative processes to include in the 2016 ADR Year in Review.
A slideshow of the 2015 ADR Year in Review presentation materials is available at this link; an audio recording of the call will be available for 30 days at the same link.
Andrew Ognibene is a 2016 summer research fellow at the Environmental Dispute Resolution Program, Wallace Stegner Center, S.J. Quinney College of Law, University of Utah. A rising second-year student at the University of Virginia School of Law, he is interested in conservation, land use, and policy issues around public lands. He has a B.A. from Duke University and worked in real estate development prior to law school. Andrew can be reached at ato3ht@virginia.edu.